Opinion Information Sheet

			

        IN THE SUPREME COURT OF THE STATE OF WASHINGTON

In the Matter of the Personal Restraint     )
of                                          )       No. 85653-2
                                            )
MANSOUR HEIDARI,                            )
                                            )
                      Respondent.           )
                                            )       Filed April 19, 2012

       ALEXANDER, J.*--We granted the State's motion to review  a decision of the 

Court of Appeals in which that court granted Mansour Heidari's personal restraint 

petition and vacated his second degree child molestation conviction.          In doing so, the 

Court of Appeals declined the State's request to direct entry of a  judgment  for  the 

lesser included offense of attempted second degree child molestation.  We affirm the 

Court of Appeals.

                                                I

       At a jury trial in King County Superior Court, Heidari was found guilty of first 

degree child rape, second degree child molestation, and third degree child molestation.  

The Court of Appeals thereafter affirmed the convictions in an unpublished opinion, 

State v. Heidari, noted at 125 Wn. App. 1009, 2005 WL 91696.  This court denied 

review.  State v. Heidari, 155 Wn.2d 1008, 122 P.3d 912 (2005).  Heidari then filed a 

       *Justice Gerry L. Alexander is serving as a justice pro tempore of the Supreme 
Court pursuant to Washington Constitution article IV, section 2(a). 

No. 85653-2

motion in the superior court for relief from the judgment and sentence under CrR 7.8.  

The superior court referred that motion to the Court of Appeals as a personal restraint 

petition.  CrR 7.8(c)(2).

       Heidari argued at the Court of Appeals that the evidence supporting his second 

degree child molestation conviction was insufficient as a matter of law because his 

victim  had  avoided  sexual  contact with Heidari.      The record showed that Heidari's 

niece, B.Z., testified that when she was in the sixth grade she was playing with her 

aunt's makeup in Heidari's bedroom when Heidari emerged from the bathroom wearing 
only a robe.1  The child said that Heidari sat on the edge of the bed and told her to 

"come over" here, pulling her leg toward him.  In re Pers. Restraint of Heidari, 159 Wn. 

App. 601, 603, 248 P.3d 550 (2011).  According to B.Z., Heidari removed his robe, 

exposing his penis.  Heidari then put his hand on B.Z.'s head and tried to press her 

mouth onto his penis.  B.Z. said that she managed to move her head to the side and 

then ran out of the bedroom.  It was clear from her testimony that the child's mouth 

never touched Heidari's penis.
       The State conceded that         there was no evidence of "sexual contact"2            but

       1Heidari was married to B.Z.'s aunt.

       2RCW  9A.44.086(1) provided, "A person is guilty of child molestation in the 
second degree when the person has, or knowingly causes another person under the 
age of eighteen to have, sexual contact with another who is at least twelve years old 
but less than fourteen years old and not married to the perpetrator and the perpetrator 
is at least thirty-six months older than the victim."  (Emphasis added.)  "'Sexual 
contact'" is defined as "any touching of the sexual or other intimate parts of a person 
done for the purpose of gratifying sexual desire of either party or a third party."  RCW 
9A.44.010(2).  

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No. 85653-2

contended  that the Court of Appeals should direct the superior court to enter                 a

judgment on the lesser included offense of attempted second degree child molestation.  

As support for its contention, the State cited State v. Garcia, 146 Wn. App. 821, 830, 

193 P.3d 181 (2008) ("when an appellate court finds the evidence insufficient to 

support a conviction for the charged offense, it will direct a trial court to enter judgment 

on a lesser degree of the offense charged when the lesser degree was necessarily 

proved at trial").  The Court of Appeals declined the State's request, concluding that it 

lacked the authority to direct the entry of a lesser included offense because the jury 

had not been instructed on that offense.  Heidari, 159 Wn. App. at 616.  Based on this 

conclusion, the Court of Appeals granted Heidari's personal restraint petition and 

vacated his second degree child molestation conviction.  The State then filed a motion 

at this court for discretionary review. We granted the motion.

                                               II

       This case concerns the power of an appellate court under RAP 12.2 to "reverse, 

affirm, or modify the decision being reviewed and take any other action as the merits of 

the case and the interest of justice may require."  We review the interpretation of a 

court rule de novo.  State v. Robinson, 153 Wn.2d 689, 693, 107 P.3d 90 (2005).

                                               III

       The State asserts that the Court of Appeals erred in holding that it lacked the 

authority to direct the entry of judgment of the lesser included offense of attempted 

second degree child molestation because the jury was not instructed on that crime.  

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No. 85653-2

The Court of Appeals based its decision on our opinion in State v. Green, 94 Wn.2d 

216, 234, 616 P.2d 628 (1980), where we said, "In general, a remand for simple 

resentencing on a 'lesser included offense' . . . is only permissible when the jury has 

been explicitly instructed thereon."  On prior occasions, the Court of Appeals has not, 

however, adhered to our statement in Green.  Indeed, in one case it dismissed the 

statement as "dictum, . . . unsupported by any citation to authority" and indicated that 

"the dispositive issue should not  be whether the jury was instructed on the lesser 

included offense, but rather whether the jury necessarily found each element of the 

lesser included offense in reaching its verdict on the crime charged."  State v. Gilbert, 

68 Wn. App. 379, 384-85, 842 P.2d 1029 (1993) (footnote omitted).  Consistent with 

that view, in State v. Gamble, 118 Wn. App. 332, 336, 72 P.3d 1139 (2003), aff'd in 

part, rev'd in part on other grounds, 154 Wn.2d 457, 114 P.3d 646 (2005), after

vacating the defendant's felony murder conviction in accordance with In re Personal 

Restraint of Andress, 147 Wn.2d 602, 56 P.3d 981 (2002), the court directed the entry 

of judgment of the lesser included offense of first degree manslaughter, notwithstanding 

the fact that the jury had not been instructed on that offense.  See also State v. Brown, 

50 Wn. App. 873, 878-79, 751 P.2d 331 (1988); State v. Plakke, 31 Wn. App. 262, 267, 

639 P.2d 796 (1982), overruled on other grounds by State v. Davis, 35 Wn. App. 506, 

667 P.2d 1117 (1983).

       It should be noted first that this court did cite authority for our statement in 

Green, including many decisions of the Court of Appeals that preceded the Court of 

                                               4 

No. 85653-2

Appeals' decision in Gilbert.  But, even if we had not cited authority for our holding, the 

Court of Appeals is not relieved from the requirement to adhere to it.  Furthermore, 

contrary to the assertion in Gilbert, the statement in Green that "remand for simple 

resentencing on a 'lesser included offense' is only permissible when the jury has been 

explicitly instructed thereon" was not dictum.  We say that because it was one of two 

reasons given for the holding of this court.  In Green, our court was reviewing a case in 

which a jury found the defendant guilty of aggravated first degree murder for the 

stabbing death of an eight-year-old girl.  On review, we determined  that there was 

insufficient evidence that the defendant had murdered the girl in the course of 

kidnapping her.  Because the verdict form did not require the jury to find unanimously 

that the murder had occurred in the course of first degree kidnapping or first degree 

rape, we were unable to say that the alternative means of first degree rape had been 

established beyond a reasonable doubt           and,   therefore,  reversed the defendant's 

conviction.  

       Relevant to the issue before us, we rejected the State's request in Green that we 

remand for sentence on the lesser included offense of first degree murder.  In doing so,

we stated the following:

              In the case at hand the jury was not instructed on the subject of a 
       "lesser included offense."    In general, a remand for simple resentencing 
       on a "lesser included offense" is only permissible when the jury has been 
       explicitly instructed thereon.  Based upon the giving of such an instruction
       it has been held that the jury necessarily had to have disposed of the 
       elements of the lesser included offense to have reached the verdict on the 
       greater offense.

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No. 85653-2

Green, 94 Wn.2d at 234 (citing State v. Jones, 22 Wn. App. 447, 454, 591 P.2d 796 

(1979); State v. Martell, 22 Wn. App. 415, 419, 591 P.2d 789 (1979); State v. Liles, 11 

Wn. App. 166, 171-73, 521 P.2d 973 (1974); People v. Codding, 191 Colo. 168, 551 

P.2d 192 (1976); United States v. Thweatt, 140 U.S. App. D.C. 120, 433 F.2d 1226, 

1234 (1970); Austin v. United States,  127 U.S. App. D.C. 180, 382 F.2d 129,  142

(1967)).  We went on to say, "In addition, it is clear a case may be remanded for 

resentencing on a 'lesser included offense' only if the record discloses that the trier of 

fact expressly found each of the elements of the lesser offense."  Id. at 234-35.  We 

explained that there was "no such clear disclosure" in the record because it was 

"impossible to know whether the jury determined unanimously that the element of rape 

had been established beyond a reasonable doubt."  Id. at 235.  Since neither 

requirement was met, we held that we could not remand for resentencing on the lesser 

included offense. The fact that the issue might have been resolved on the basis of the 

second requirement alone does not mean that the first requirement was mere dictum.  

As the Court of Appeals recognized below, Green dictates the outcome of this appeal.

       Moreover, we are unwilling to abandon the rule we adopted in Green.  Green 

applies only to situations in which the prosecution pursued an "all or nothing" strategy.  

Thus, the State can easily avoid the force of Green by requesting a lesser included 

offense instruction at trial.  On the other hand, jettisoning Green would be harmful to 

defendants because if jurors are not asked to decide the defendant's guilt or innocence 

on a lesser included offense, the defendant is denied the opportunity  of  defending

                                               6 

No. 85653-2

against such a charge and might forgo strategies, arguments, and the presentation of 

evidence relative to that charge.

       Finally, even if we were inclined to overrule our decision in Green, it would still 

be improper to direct the entry of judgment of the lesser included offense of attempted 

second degree child molestation.  That is so because the jury did not "necessarily [find] 

each element of the lesser included offense in reaching its verdict on the crime 

charged."  Gilbert, 68 Wn. App. at 385.  The crime of attempted second degree child 

molestation requires proof that the defendant acted "with intent."  See  RCW 

9A.28.020(1).   Second degree child molestation, however, is a strict liability offense.  A 

person is guilty of that crime "when the person has . . . sexual contact with another who 

is at least twelve years old but less than fourteen years old and not married to the 

perpetrator and the perpetrator is at least thirty-six months older than the victim."  RCW 

9A.44.086(1).

       The State  points out, however, that we have held that second degree child 

molestation implicitly requires proof of intent.  In State v. Stevens, 158 Wn.2d 304, 306, 

143 P.3d 817 (2006), we observed that "'[s]exual contact' is statutorily defined as 'any 

touching of the sexual or other intimate parts of a person done for the purpose of 

gratifying sexual desire of either party or a third party.'"  Id. at 309 (emphasis added)

(quoting former RCW  9A.44.010(2) (2005)).  We reasoned, then, that "[i]n order to 

prove 'sexual contact,' the State must establish that the defendant acted with a purpose 

of sexual gratification.  Thus, while sexual gratification is not an explicit element of 

                                               7 

No. 85653-2

second degree child molestation, the State must prove a defendant acted for the 

purpose of sexual gratification."  Id. at 309-10.  Accordingly, we held that "[i]ntent is 

relevant to the crime of second degree child molestation because it is necessary to 

prove the element of sexual contact."  Id. at 310.

       The State equates the intent necessary to commit attempted second degree 

child molestation with the "purpose of sexual gratification" component of the "sexual 

contact" element.  But proof of that very element was lacking.  Here, the State 

concedes that there was no "sexual contact" because there was no "touching of the 

sexual or other intimate parts of a person."     We are willing for the sake of argument to 

split the "sexual contact" element, retaining the "purpose of sexual gratification" 

component while eliminating the unproven component of "touching . . . the sexual or 

other intimate parts of a person."  In that case, we can say that the jury necessarily 

found that Heidari acted with the "purpose of gratifying [his] sexual desire" with a 

person "who [was] at least twelve years old but less than fourteen years old and not 

married to the perpetrator."  But for us to say that this is the same as taking a 

substantial step toward the commission of second degree child molestation with intent

to commit that crime would be an improper invasion by this court of the jury's province.  

See State v. Symes, 17 Wash. 596, 599, 50 P. 487 (1897).

                                             Conclusion

       In sum, we reaffirm our decision in Green and hold that the Court of Appeals 

properly declined to direct the entry of judgment of the lesser included offense of 

                                               8 

No. 85653-2

attempted second degree child molestation.            The Court of Appeals is, therefore, 

affirmed.

AUTHOR:

        Gerry L. Alexander, Justice Pro 
        Tem.

WE CONCUR:

        Justice Charles W. Johnson

        Justice Tom Chambers                             Justice Charles K. Wiggins

        Justice Susan Owens

        Justice Mary E. Fairhurst

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